Decision Date: 10/27/95 Archive Date:
10/30/95
DOCKET NO. 93-23 881 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement to recognition as a former prisoner of war for
the purpose of Department of Veterans Affairs benefits.
ATTORNEY FOR THE BOARD
Michelle D. Doses, Associate Counsel
INTRODUCTION
The veteran had recognized guerrilla service from January
1945 to February 1946 and regular Philippine Army service
from February 1946 to June 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of July 1993 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, Philippines denying the veteran's claim for former
prisoner of war (POW) status.
The veteran, in correspondence dated in January 1994, is
apparently seeking to reopen his claims for service
connection for several disabilities. These issues are not
currently before the Board and are referred to the RO for
appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran requests recognition as a former prisoner of
war. He contends that he had active service from 1941 to
1945 and during this period, from January 1942 to September
1942, was a prisoner of war.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the evidence is against the
veteran's claim for recognition as a former prisoner of war.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
originating agency.
2. The veteran's verified service is limited to recognized
guerrilla service from January 1945 to February 1946 and
regular Philippine Army service from February 1946 to June
1946.
CONCLUSION OF LAW
As the veteran does not have verified active service for the
period from January 1942 to September 1942, he cannot be
recognized as a former prisoner of war for the purpose of
eligibility for VA benefits. 38 C.F.R. §§ 3.1(y), 3.8, 3.9,
3.203 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is seeking recognition as a former prisoner of
war. The current record includes an Affidavit For Philippine
Army Personnel signed by the veteran in February 1946 in
which he indicates that he was called to active duty and was
inducted into the USAFFE in September 1941. A service
department report dated in January 1954 reflects that a
determination was made by the service department that the
veteran had recognized guerrilla service from January 1945
to February 1946 and regular Philippine Army service from
February 1946 to June 1946. That same record also indicates
that the veteran had no POW status.
Affidavits from former comrades dated in December 1956 and
January 1957 state that the veteran had been called and
reported to duty in August 1941 and had been inducted into
the service at that time. A service department record dated
in June 1970 reflects that a determination was made that the
evidence submitted was insufficient to warrant a change in
the January 1954 certification. A joint affidavit from
Emilio Ubanos and Perfecto Vallejos dated in April 1993
states that the veteran was a member of the Philippine Army
during World War II and was a prisoner of war. The
veteran's statement in support of his claim dated in April
1993 and letter dated in July 1993 both indicate that the
veteran was held from January 1942 to September 1942.
To be recognized as a former prisoner of war, a person must
have been forcibly detained while in the active service. 38
C.F.R. § 3.1(y). A finding by the appropriate service
department that a person was a prisoner of war during a
period of war is binding unless there is a reasonable basis
for rejecting such finding. 38 C.F.R. § 3.1(y)(1).
Regarding Philippine service, the period of active service
is designated as the date certified by the Armed Forces as
the date of enlistment or date of report for active duty,
whichever is later, to date of release from active duty,
discharge, death, or in the case of a member of the
Philippine Commonwealth Army June 30, 1946, whichever was
earlier. 38 C.F.R. § 3.9(a).
38 C.F.R. § 3.203 provides for two methods of proving active
military service: (1) by submission of a genuine and
accurate document, containing the necessary information,
issued by a service department, or (2) through verification
of service by the service department.
While the veteran submitted numerous affidavits and letters
stating that he had active service from August 1941 or
September 1941, the service department verification
reflected that the veteran had served as a guerrilla from
January 1945 to February 1946 and with the Philippine Army
from that time until June 1946. The veteran submitted no
genuine and accurate document issued by the service
department. While the veteran claims he was a prisoner of
war from January 1942 to September 1942, this has not been
verified. Rather, the service department specifically found
that the veteran had no POW status.
The veteran claims he was a prisoner of war in 1942, a
period in which he had no verified military service. Since
recognition as a former prisoner of war requires the
detention to have occurred during the time that the veteran
was in the service, the veteran is not entitled to such
recognition. 38 C.F.R. §§ 3.1(y), 3.8, 3.9, 3.203.
ORDER
Entitlement to recognition as a former prisoner of war for
the purpose of VA benefits is denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
- 2 -